Off Target Ethics

Drone Warfare and Its Legitimation

by Wilson Cusack, Dominique Pariso & Francis Torres

Illustration by Gabriel Matesanz

published November 13, 2015

On October 15, news outlet The Intercept released four classified documents that detail the Obama administration’s use of unmanned aerial vehicles (UAVs)—commonly known as drones. The release flared an ongoing debate on their ethics and legality, attracting the attention of human rights activists, military analysts, journalists, and politicians from the far-right to the left and back again. Here, we review the history of drone use, the current legal framework that allows their use, and what The Intercept’s release brought to light.

The Birth of the Predator: An Abridged History of Drones

From backyard playthings to Jeff Bezos’ ultimate delivery gimmick to militarized weapons and surveillance tools, drones are a strange symbol of modernity. The most common military drone is the MQ-1 Predator. The Predator’s white body weighs 1,130 pounds, has a wingspan of 55 feet, and cruises above the world at 135 mph. They look like birds of prey, or perhaps huge robotic bugs. According to the US Air Force, “The Predator system was designed in response to a Department of Defense requirement to provide to the warfighters persistent intelligence, surveillance, and reconnaissance information combined with a strike capability.”

In its capacity for surveillance and brutal violence, everything about this machine is dystopian. But this is no dystopia, merely the current state of warfare in a post-9/11 world. The military apparatus that has developed since then perhaps sustains itself through a rhetoric of precision. The so-called ‘War on Terror’ is defined by its need to classify, identify, and measure elusive threats. The drone pretends to offer a clean excision of those threats. Who, however, is a threat and for what reason they are a threat, is unclear.

These concerns are inscribed in the history of aerial warfare. Humans have tried to harness the air to the ends of violence for at least two centuries. The first predecessor of drones came in 1849, when Austria launched 200 balloon-tied bombs into the city of Venice. In World War I, when the US Navy tried and failed to develop a fleet of “air torpedoes,” unmanned biplanes launched into flight by catapult and then flown over enemy positions. The technique was refined by the Navy in World War II when it launched Operation Anvil, a program to develop B-24 bombers guided by remote control that would target German bunkers. 

And then in 1981, Abraham Karem wheeled out from his garage in Los Angeles an aircraft called the Albatross and the game changed. His Albatross could stay in the air for over 50 hours and carry a television camera. After being funded by DARPA, the military’s research and development department, Karem built the Amber and then the Gnat, which are the direct ancestors of the Predator. The rest, as they say, is history.

The first Predator drone was flown in June 1994 over the Balkans and several were used for survaeillance over the following eight years. The CIA began to fly drones over Afghanistan in 2000. After September 11, they began to fly armed drones. The next big paradigm shift occured on February 4, 2002, when the CIA initiated the first targeted killing, outside of military support, by an unmanned Predator drone. The lurking threat of violence that pervasive surveillance inherently carries had finally been realized. The intended target was Osama bin Laden. The drone operators came across three men near Zhawar Kili, a former infamous mujahedeen base in Afghanistan, including a “tall man in robes” and two others. Of course, the tall man was not bin Laden, although officials insisted that he was an appropriate target. The tall man turned out to be a villager named Daraz Khan. He was in the area foraging for bits of shrapnel and bombs—leftover metal from US airstrikes could fetch a decent price.

Since 2004, the US has been conducting surveillance and targeted killings across Pakistan, the country that has bore the brunt of most American drone strikes. The most recent stats bring the number of total strikes to over 400, with anywhere from 2,400 to 4,000 people killed. There have been over 75 strikes in Yemen and Somalia since 2002, which has taken the lives of upwards of 833 people. The more recent strikes in Yemen and Somalia suggest that the hum and buzz of drones is spreading. And as the drone war drags on, questions are being raised about the legality of their use. 

Drones in Law and Practice

Indeed, the legality of drones has been scrutinized under both American and international law. The terrifying implications of this new technology—the capacity to strike a target almost anywhere in the world remotely—naturally raise concerns about how armed drone are deployed, and how their use is legitimized.

American drone strikes find their legal backing in the “Authorization on the Use of Military Force,” or AUMF, a law approved by Congress and signed by President Bush within a week of the 9/11 terrorist attacks. The bill gave the President to power to approve “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” This expanded authority provided the juridical logic for all military actions against the groups thought to be responsible for the 9/11 attacks—namely, the Al-Qaeda, the Taliban, and their “associated organizations.” The Obama administration did not challenge this law but rather stretched its powers, leading to a peak in drone strikes against suspected terrorist targets during President Obama’s first term. 

The lawfulness of American drone strikes relies on categorizing targets as enemy soldiers in an ongoing war. The term ‘enemy combatant’ historically applied to uniformed soldiers in opposing armies, and was meant to protect civilians from being targeted. There are no uniforms in the global ‘War on Terror’ though, and the line between civilians and combatants has become blurred. In an attempt to account for transnational nature of terrorist networks, the Bush administration redefined “enemy combatant” as “an individual who was part of or supporting the Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The degree of association with a target organization needed to be considered a combatant is undefined, and the power to decide if an individual is affiliated enough to be an enemy combatant lies in the President’s hands.

By assigning enemy status to targets, US drone strikes become subject to international laws of war. Article 2(4) of the UN Charter prohibits the threat or use of force in international relations, though it allows for very a limited set of exceptions. President Obama himself maintains that extraterritorial drone strikes are a legitimate exercise of the United States’ right to self-defense, sanctioned in Article 51 of the UN Charter. Going further, the Obama administration has declared its right to unilaterally pursue targets in foreign states—either American or foreign nationals—without the need for the other country’s consent if that country is “unwilling or unable to deal effectively with the threat.” This unorthodox reading of the sovereign right to self-defense provided the legal reasoning behind the Navy SEAL raid that killed Osama bin Laden in Pakistan without the Pakistani government’s approval.

In a 2013 speech at National Defense University in Washington, DC, President Obama went on the record defending the use of drones to target potential terrorists. Characterizing the conflict against al-Qaeda and “associated organizations” as a “just war” waged “proportionally, in last resort, and in self-defense,” the President also assured listeners that there must be near-certainty that no civilians will be killed or injured by a drone strike before he signs off on it. The President’s reaffirmation of the legal discourse around drone use has brought much contempt from civil rights groups like Amnesty International and Human Rights Watch, both of which have released reports on the US drone program’s breaches of international law. The main point of contention between the US government and these organizations involves the classification of drone victims as “enemy combatants,” especially in situations where this claim is hard to verify independently.


The Drone Papers

The Drone Papers, published by The Intercept on October 15, is comprised of four classified US government documents and eight explanatory articles. The publication obtained the documents from “a source within the intelligence community who worked on the types of operations and programs described in the slides.” Among other things, the documents bring to light the ways in which assassination decisions are made, the amount of civilians casualties in strikes, and the Obama administration’s preference of lethal drone strikes over capturing targets.

The papers also detail the high collateral damage of US drone strikes.  For instance, in  Operation Haymaker, a special operations campaign in northeastern Afghanistan between January 2012 and February 2013, “US airstrikes killed 219 people. Of those, only 35 were the intended targets.” US intelligence on civilian casualties is most comprehensive in Afghanistan, but the number of civilian casualties is likely the same or greater in Yemen and Somalia. In Somalia, according to The Intercept, Obama authorized the assassinations of 20 people in 2012, yet the Bureau of Investigative Journalism reported over 200 people were killed in 2012. The military designates all people killed in a strike as EKIA, enemy killed in action, even if they are not the targets, unless evidence emerges that they were not terrorist combatants. The articles do not shed light on the ways that this might be done.

The Intercept’s source said that official US government statements claiming minimal civilian casualties are “exaggerating at best, if not outright lies.” One of the documents includes a detailed diagram of the hierarchy of decision-making on high-value targets, with the POTUS at the top.

The source also stressed the poor quality of the intelligence going into assassination decisions: “It’s stunning the number of instances when selectors are misattributed to certain people. And it isn’t until several months or years later that you all of a sudden realize that the entire time you thought you were going after this really hot target, you wind up realizing it was his mother’s phone the whole time.” If intelligence were strong, and three innocent people did not die for every target assasinated, the ethical dilemma at hand might be quite different.

Mediating Drones

According to a 2013 Gallup Poll, “in the US, 65% support drone attacks on terrorists abroad.” The Intercept’s publication of The Drone Papers caused a stir, but maybe not one quite as dramatic as the publishers had hoped. Many activists concerned about drone warfare considered the leaked documents just as significant as Edward Snowden’s. Snowden himself tweeted a link to The Drone Papers saying: “When we look back on today, we will find the most important national security story of the year.” 

Most major US publications have covered the release to some extent, but the Washington Post has published nothing at all, and the New York Times only published two paragraphs about the release at the bottom of an article about Obama extending the stay of US troops in Afghanistan. The New York Times public editor, Margaret Sullivan, criticized the paper for their lack of coverage. The silence of these two publications—and the fact that the revelation that only 35 of 219 people killed in drone strikes were intended targets might not be considered newsworthy—speaks to the contentious nature of the current drone debate in the US.

The Predator drone—much like the trench, the tank, the submarine, and the atom bomb that came before it—completely changed the way we engage in war in that it changed the methods and the distance of killing. One drone software, Ballista, allows the pilot to alter its interface and replace the image of the intended target with whatever image he wants, from an emoticon to a picture of Osama bin Laden. Drones open up a space wherein killing can be mediated by both distance and technology to hide the moral and ethical implications of what is happening. The killing here is remote-controlled, removed, distant.

It is a peculiar set of circumstances that makes drones so disturbing: this estrangement from violence, the distance, the minimization of risk, the anonymity, the lack of political accountability. All of these are enabling secretive and illegal killing.